Orissa High Court
Bibhuranjan Dalai vs State Of Orissa ...... Opp. Party on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRIMINAL REVISON No. 231 of 2006
An application under Section 401 of the Cr.P.C., read with
Section 397 of the Cr.P.C. challenging the judgment and order dated
01.12.2023 of learned Chief Judicial Magistrate-cum-Assistant
Sessions Judge, Jagatsinghpur in S.T. Case No.97 of 2001 and the
judgment and order dated 31.03.2006 of learned Addl. Sessions Judge,
Jagatsinghpur in Criminal Appeal No.73 of 2003/22 of 2004.
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Bibhuranjan Dalai ...... Petitioner
-versus-
State of Orissa ...... Opp. Party
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For Petitioner : Mr. Devashis Panda, Advocate
and Mr. Sudipto Panda, Advocate
For Opp. Party : Ms. Samapika Mishra, A.S.C.
Mr. D. P. Pattnaik (for informant)
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CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
30.05.2025
Savitri Ratho, J This Criminal Revision has been filed challenging the judgment
and order dated 31.03.2006 passed by the learned Additional Sessions
Judge, Jagatsinghpur, in Criminal Appeal No. 73 of 2003/22 of 2004,
confirming the judgment and order dated 01.12.2003 passed by the
learned Chief Judicial Magistrate-cum-Assistant Sessions Judge,
Jagatsingpur in S.T. Case No. 97/16 of 2001 convicting the petitioner
under Sections 376, 448 of the Indian Penal Code (in short the "IPC")
and sentencing him to undergo rigorous imprisonment (in short "R.I.")
for seven years and to pay a fine of Rs.5,000/- (Rupees five thousand)
in default of payment to undergo simple imprisonment (in short "S.I.")
for a further period of one year for the offence under Section 376 of
IPC and to undergo simple imprisonment for six months for the offence
under Section 448 of IPC. Both the sentences of imprisonment were
directed to run concurrently, and the period undergone as U.T.P., to be
set off. It also directed that out of the sum of Rs.5,000/- imposed
towards fine, a sum of Rs.3,000/-(Rupees three thousand) be paid to the
victim P.W.2 in view of the provisions under Section 357 of the Cr.P.C.
PROSECUTION CASE
2. The prosecution allegation in brief is that, on 26.09.1999 at about
7.00 P.M. the informant- Basanti Nanda, wife of Late Madhab Chandra
Nanda went to the temple to perform the „sandhya puja‟ and by then
her daughter, P.W.2 - the victim was alone in her house. In absence of
the informant from the house, the accused entered the house, caught
hold of the victim and forcibly made her lie down on a cot and removed
her dress and other wearing apparels and committed sexual intercourse
with her forcibly and also squeezed her breasts. He turned a deaf ear to
the request of the victim and raped her brutally for which she sustained
bleeding injury and pain in her private part. The informant on her
return, learnt about the incident from the victim and took her to
Kujanga hospital for treatment. The FIR was lodged by her mother at
Kujanga Police Station and after due investigation, charge sheet was
submitted against the accused under Sections 448,376,506 of the IPC.
CHARGE
3. The petitioner was charged for commission of offence
punishable under Section 448,376,506 of IPC.
DEFENCE PLEA
4. The defence plea was one of denial and that there was love
relation, between him and the victim and when he refused to marry her,
false allegations were made against him.
WITNESSES
5. During course of trial, in order to prove its case, the prosecution
examined sixteen witnesses.
P.W.1 (name withheld) is the son of the informant and brother of
the victim. P.W.2 is the victim (name withheld), P.W.3 Narahari
Swain, P.W.4 Kailash Chandra Pani, P.W.5 Manoranjan Palai are the
villagers. P.W 5 has not supported the prosecution case. P.W.6 (name
withheld) is the informant. She is mother of the victim. P.W.7
Manoranjan Dalai is the scribe of the FIR and P.W.8 Jogendranath
Dalai is a co-villager has also been declared hostile as he supported
only part of the prosecution case. P.W.9 Dr. Saroj Kumar Jena, P.W.12
Dr. Sridhar Behera and P.W.13 Dr. Dillip Kumar Biswal are the
medical officers. P.W.10 Prafulla Kumar Mallik and P.W.11 Gunanidhi
Mallik are witnesses to the seizures and have been declared hostile.
P.W.14 Kishore Chandra Das, P.W.15 Ranjit Kumar Prusty and P.W.16
Pradyumna Kumar Jena are the Investigating Officers.
No witness was examined by the defence.
EXHIBITS and M.Os.
6. The prosecution exhibited eight documents. Ext.1 is the Seizure
list and Ext.2 is the F.I.R. and Ext.3 is the Report, Ext.4 is the signature
of P.W.10 and 11, Ext.5 is the Injury Report of Bibhuranjan Dalai,
Ext.6 is the injury report, Ext.7 is the spot map, Ext.8 is the Serological
Examination Report.
A letter addressed to the accused was marked as „X‟ at the
instance of the defence.
Two material objects were marked by the prosecution. M.O.I is
the nighty and M.O.II is the saya.
JUDGMENT OF THE LEARNED TRIAL COURT
7. The learned Trial Court held after careful analysis of the
evidence of the witnesses and hearing the learned counsel observed that
there were some defects in the investigation and contradiction in the
statements of the witnesses, but these were not vital in nature. It is
found that the prosecution had proved its case against the accused of
commission of offences under Sections 448, 376 of the IPC beyond all
reasonable doubt, but had failed to substantiate the allegation relating
to the offence under Section 506 of the IPC. It convicted the accused
for the offence under Section 448, 376 of the IPC but acquitted him
from the charge under Section 506 of IPC and after hearing the
accused, his counsel sentenced him to undergo Rigorous imprisonment
for seven years and to pay a fine of Rs.5,000/-(Rupees five thousand) in
default of payment to undergo simple imprisonment for a further period
of one year for the offence under Section 376 of the IPC and to undergo
simple imprisonment for six months for the offence under Section 448
of the IPC.
APPELLATE COURT JUDGMENT
8. The learned Appellate Court did not find any ground to interfere
with the judgment of the learned trial court and confirmed the
conviction and sentence of the petitioner under Sections 376, 448 of
IPC.
SUBMISSIONS
9. I have heard Mr. Devashis Panda and Mr Sudipto Panda, learned
counsel for the petitioner, Ms. Samapika Mishra, learned Additional
Standing Counsel for the State of Odisha and Mr. D. P. Pattnaik,
learned counsel for the informant.
10. Mr. Panda, learned counsel for the petitioner has challenged the
conviction of the petitioner on the following grounds:-
i) The sole testimony of victim and her family members can form the
basis for conviction only if the same are safe, reliable and worthy of
acceptance, which is not the case here .
ii) The medical evidence contradicts the victim‟s version.
iii) There is delay in filing the FIR and delay in sending the FIR to
Court. The original FIR has been suppressed .
iv) There is discrepancy regarding place of occurrence and discrepancy
as regard the seized materials.
v) The „Chadi‟ and „Bangles‟ of the victim have not been seized .
vi) Non-examination of immediate neighbours and non-disclosure of
name before the doctor.
They have relied on the following decisions in support of his
submissions:-
(i) Rabi Munda vs. State of Odisha reported in 2021 (II) ILR -CUT-
136,
(ii) Jagannath Ojha @ Jaga @ Jaguni @ Jatia @ Potala @ Dhuna vs.
State of Odisha reported in 2023 (I) ILR -CUT- 1021 and
(iii) Gopal Charan Satpathy vs. State of Odisha reported in 123 (2017)
CLT 791.
11. Ms. S. Mishra, learned Additional Standing Counsel for State has
submitted that there is neither any delay in lodging FIR nor any delay
in sending the FIR to the Court of the learned Magistrate as PW14 has
stated during the cross-examination that the FIR had been sent to the
Court by special messenger on the same day. The submission of the
learned counsel that the original FIR has been suppressed is not correct
as P.W.7 has stated that he has scribed the FIR as per instruction of
P.W.6 . She has also submitted that there is no reason to disbelieve the
evidence of the victim -P.W. 2. She has also submitted that even in the
absence of medical evidence, the sole testimony of the victim can be
the basis of conviction of the accused. She has also submitted that the
evidence of P.W.1 brother of the victim and P.W.6 mother of the
victim, corroborates the evidence of P.W.2 the victim. Minor
contradictions and omissions are natural, but these are not of such a
nature so as to throw out the prosecution case in toto.
12. Mr. D. P. Pattnaik, learned counsel for the informant has
submitted that there is no reason to disbelieve the victim and interfere
with the conviction of the petitioner. He has submitted that : -
i) In a tradition bound Indian Society, no woman of any honour and
chastity would make false allegation of rape, as it would tarnish her
image.
ii) As the offence was perpetrated within the four corners of a
house, so there is no chance of eye witnesses being there .
iii) The sole evidence of the victim if worthy of acceptance and
inspires confidence, can form the basis of conviction. The evidence of
the victim P.W.2 is cogent and has stood the test of cross examination.
He relied on the decision of the Supreme Court in the case of Phool
Singh vs. State of Madhya Pradesh reported in AIR 2022 SC 222. , in
support of his submission
iv) Corroboration is a rule of prudence and not the requirement of
law. In a case of rape, corroboration should not be insisted upon.
v) P.W.3 and 4, the witnesses to seizure have proved the seizure of
the wearing apparel of the victim - M.O.I and M.O.II , which were
stained with blood.
vi) The report of the Serologist of the State Forensic Laboratory, Ext. 8
reveals that the wearing apparels M.O.I and M.O.II (nighty and saya)
were stained with human blood.
vii) P.W.5 may not have supported the prosecution case that he had
carried the victim to Kujanga Hospital on being requested by the
mother of the victim, P.W.13, the Medical Officer of the P.H.C.
Kujanga has stated that the victim was lying on the bed of the Kujanga
P.H.C. and he came to know that on 26.09.1999 victim has been
admitted to the hospital. So that she was admitted hospital cannot be
doubted.
viii) The evidence of P.W.6, mother of the victim supports the evidence
of P.W.2- the victim and has not been shaken in cross-examination .
ix) P.W.9 Doctor who has examined the victim lady on 28.09.1999 has
given a report denying finding any signs of recent sexual inter-course.
He has attempted to suppress the truth and help the accused, but
admitted that there was bleeding in the private part of the victim for
which siochrome injection had been given to check bleeding. His
evidence does not affect the clear evidence of P.W.2 the victim.
x) P.W.11 , Medical Officer of Kujanga Hospital , had examined
the accused on 16.07.2000 , after 20 days of the incident. Hence it is
natural that he did not find any signs of forcible sexual inter-course.
xi) P.W.13 the doctor of the Kujanga P.H.C. has stated that the
victim was admitted to hospital on 26.09.1999 night and an injection
was given to the victim and mother narrated about the rape on the
victim.
xii) P.W.14, 15 and 16 are the Investigating Officers in the case have
well proved the prosecution case and nothing has been brought out to
discredit their evidence .
JUDICIAL PRONOUNCEMENTS (Relied upon by the learned
counsel)
13. In the case of Jagannath Ojha @ Jaga @ Jaguni @
Jatia @ Potala @ Dhuna (supra), on the allegation that one woman
had been sexually assaulted by some unknown culprits at a club ,
S.D.Entry had been made against unknown persons and the IIC
Singhdwar Police Station had proceeded to the spot. Near the club he
heard shouting from an under construction house and saw the
appellant and two others ran away from the spot and the victim was
sitting in the under construction house. The victim did not give any
statement to the police nor could her statement be recorded under
Section 164 Cr.P.C. as she could not answer any questions of the
police or the court. She was found to be mentally unsound and
pregnant. The appellants had been convicted relying upon the oral and
documentary evidence and the DNA test report but the Scientific
Officer had not been examined. Holding that there was absence of
evidence regarding proper preservation of the seized wearing apparels
and absence of medical evidence regarding rape and absence of
evidence from the victim and non-examination of the Scientific
Officer, for which it would be risky to convict the appellants this
Court, allowed the appeals and set aside the conviction of the accused
persons under Section 376 (D) of the I.P.C.
In the case of Gopal Charan Satpathy (supra), this Court has
held as follows:-
" Law is well settled that the circumstances which are not put to
the accused in his examination under section 313 of Cr.P.C.
cannot be used against him and must be excluded from
consideration. Accused statement has got twin purpose. It gives
opportunity to the accused to furnish explanation and where the
accused denies the established facts, remains silent or offers
false explanation, adverse inference can be drawn in
appropriate cases as the balance tilts in favour of the
prosecution. Since the incriminating material evidence
appearing in the documents like Exts.14 and 15 have not been
put to the petitioner in his accused statement, the Courts below
should not have used those materials against the petitioner.
The husband of the victim was examined as P.W.6 and he has
stated that on the date of occurrence when he did not find
Gudakhu and tooth twig in the market, he returned back to the
upstairs of the lodging and found the petitioner was coming
from the room in question to the downstairs and he told the
petitioner that he could not find Gudakhu and tooth twig. The
petitioner told him that he would arrange the same from the
hotel boy and left towards the ground floor. The victim stated in
her evidence that twenty to twenty five minutes after the sexual
act and departure of the petitioner, her husband entered into the
room in question. If the petitioner had left the room in question
immediately after the sexual act was over as stated by the victim
and the husband of the victim arrived in that room twenty to
twenty five minutes thereafter, it appears improbable that he
would meet the petitioner on the staircase.
In the first information report, it is mentioned that after the
commission of sexual act by the petitioner, the husband of the
victim came to the room in question from the market and
thereafter the petitioner also came to that room and stayed
there which appears to be another improbable feature. During
trial, the said part of the prosecution case which has been
mentioned in the first information report has been given a go
bye. The prosecution case is that after the victim and her
husband left the spot room in question, they met one person on
the road who advised them to go to the police station and lodge
the report. The said person has not been examined. The
evidence of the Investigating Officer is that he caught hold of
the petitioner from the river embankment at Jobra and the
petitioner produced the lungi in which semen stains were found.
It appears to be an improbable story that the petitioner without
taking any steps to wash off the semen stains in the
incriminating lungi and without trying to abscond would move
at a nearby place to the police station with such lungi.
Failure of the accused to prove the defence plea even by
preponderance of probabilities would not ipso facto prove the
prosecution case which has to stand on its own legs. No
weakness in the defence case can come to its rescue so far as
the burden to prove the guilt of the accused satisfactorily and
beyond reasonable doubt.
Law is well settled that though the High Court ordinarily does
not interfere with the findings of facts or makes a re-appraisal
of the evidence in its revisional jurisdiction but in special and
exceptional circumstances, the Court is entitled to go into the
questions of fact where acceptance of the opinion of the Courts
below is likely to lead to miscarriage of justice or where the
conscience of the Court is satisfied that in the broad interest of
justice, the findings and the conviction are not sustainable.
Miscarriage of justice arises when the Courts below overlooked
the vital evidence or did not consider the evidence in its true
prospective. If the judgment is unreasonable and unfounded, the
Court can interfere with the concurrent findings of facts.
9. In view of the infirmities in the prosecution case as discussed
above, when the material evidence have been overlooked by
both the Courts below which according to my opinion has
resulted in causing serious miscarriage of justice and prejudice
to the appreciation of the evidence so far as the petitioner is
concerned, I am of the humble view that the impugned
judgments and orders of conviction are not sustainable in the
eye of law"..
In the case of Rabi Munda vs State of Odisha : 123 ( 2017)
CLT 791 (supra), the victim was below the age of sixteen years and
had been medically examined on the very next day of the occurrence,
but the doctor had stated there was no sign of recent sexual intercourse
on her genitalia and her hymen did not allow entry of the tip of the
little finger, the I.O. had visited the spot on the very next day but had
not noticed any marks of violence at the spot nor noticed any mud
sticking to the wearing apparel of the victim, and wearing apparel of
the victim and accused had been sent for chemical examination but the
report was not proved . In view of the infirmities in the prosecution
case, this Court acquitted the accused.
In the case of Phool Singh vs State of Madhya Pradesh :
AIR 2020 SC 222. , the Supreme Court has held as follows :-
"5.4 In the case of Sham Singh v. State of Haryana, (2018)
18 SCC 34, it is observed that testimony of the victim is vital
and unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts should
find no difficulty to act on the testimony of the victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is further
observed that seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts to
adding insult to injury. In paragraphs 6 and 7, it is observed
and held as under:
"6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity.
The courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out
an otherwise reliable prosecution case. If the evidence of
the prosecutrix inspires confidence, it must be relied upon
without seeking corroboration of her statement in material
particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be appreciated in
the background of the entire case and the court must be
alive to its responsibility and be sensitive while dealing
with cases involving sexual molestations or sexual
assaults. [See State of Punjab v. Gurmit Singh [State of
Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403,
para 21).]
7. It is also by now well settled that the courts must, while
evaluating evidence, remain alive to the fact that in a case
of rape, no self-respecting woman would come forward in
a court just to make a humiliating statement against her
honour such as is involved in the commission of rape on
her. In cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies in
the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should find
no difficulty to act on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. (See Ranjit Hazarika v. State of Assam [Ranjit
Hazarika v. State of Assam, (1998) 8 SCC 635)."
6. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and as observed
hereinabove, we see no reason to doubt the credibility and/or
trustworthiness of the prosecutrix. She is found to be reliable
and trustworthy. Therefore, without any further corroboration,
the conviction of the accused relying upon the sole testimony
of the prosecutrix can be sustained."
JUDICIAL PRONOUNCEMENTS
Scope of interference in a Criminal Revision
In the case of Malkeet Singh Gill v. State of Chhattisgarh,
(2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC
786 , the Supreme Court has held that the revisional court does not
exercise appellate jurisdiction and it can only rectify the patent defect,
errors of jurisdiction or error of law of the Court below . It was held as
follows: -
"10. Before adverting to the merits of the contentions, at the
outset, it is apt to mention that there are concurrent findings of
conviction arrived at by two courts after a detailed appreciation
of the material and evidence brought on record. The High Court
in criminal revision against conviction is not supposed to
exercise the jurisdiction like to the appellate court and the scope
of interference in revision is extremely narrow. Section 397 of
the Criminal Procedure Code (in short "CrPC") vests
jurisdiction to satisfy itself or himself as to the correctness,
legality or propriety of any finding, sentence or order, recorded
or passed, and as to the regularity of any proceedings of such
inferior court. The object of the provision is to set right a patent
defect or an error of jurisdiction or law. There has to be a well-
founded error which is to be determined on the merits of
individual cases. It is also well settled that while considering the
same, the Revisional Court does not dwell at length upon the
facts and evidence of the case to reverse those findings.
Defective Investigation
In the case of Karnel Singh v. State of M.P: (1995) 5 SCC 593,
the Supreme Court upheld the conviction of the accused, placing
reliance on the evidence of the victim and holding as follows :
"..Notwithstanding our unhappiness regarding the nature of
investigation, we have to consider whether the evidence on
record, even on strict scrutiny, establishes the guilt. In cases of
defective investigation the court has to be circumspect in
evaluating the evidence but it would not be right in acquitting
an accused person solely on account of the defect; to do so
would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective.
Any investigating officer, in fairness to the prosecutrix as well
as the accused, would have recorded the statements the
statements of the two witnesses and would have drawn up a
proper seizure-memo in regard to the „Chaddi‟. That is the
reason why we have said that the investigation was slip shod
and defective.
We must admit that the defective investigation gave us some
anxious moments and we were at first blush inclined to think
that the accused was prejudiced. But on closer scrutiny we
have reason to think that the loopholes in the investigation
were left to help the accused at the cost of the poor
prosecutrix, a labourer. To acquit solely on that ground would
be adding insult to injury."
Sole evidence of prosecutrix
In the case of State of Maharashtra v. Chandraprakash
Kewalchand Jain: (1990 )1 SCC 550, the Hon'ble Supreme Court held
that crimes like rape are usually done covertly for which usually only
the direct evidence of the prosecutrix is available and that a woman
especially a young girl will not risk her reputation to make false
allegations involving herself. It held as follows:
."... With respect, the law is not correctly stated. If we may say
so, it is just the reverse. Ordinarily the evidence of a
prosecutrix must carry the same weight as is attached to an
injured person who is a victim of violence, unless there are
special circumstances which call for greater caution, in which
case it would be safe to act on her testimony if there is
independent evidence lending assurance to her accusation. We
think it proper, having regard to the increase in the number of
sex-violation cases in the recent past, particularly cases of
molestation and rape in custody, to remove the notion, if it
persists, that the testimony of a woman who is a victim of
sexual violence must ordinarily be corroborated in material
particulars except in the rarest of rare cases. To insist on
corroboration except in the rarest of rare cases is to equate a
woman who is a victim of the lust of another with an
accomplice to a crime and thereby insult womanhood. It would
be adding insult to injury to tell a woman that her story of woe
will not be believed unless it is corroborated in material
particulars as in the case of an accomplice to a crime. Ours is
a conservative society where it concerns sexual behaviour.
Ours is not a permissive society as in some of the Western and
European countries. Our standard of decency and morality in
public life is not the same as in those countries. It is, however,
unfortunate that respect for womanhood in our country is on
the decline and cases of molestation and rape are steadily
growing. An Indian woman is now required to suffer
indignities in different forms, from lewd remarks to eve-
teasing, from molestation to rape. Decency and morality in
public life can be promoted and protected only if we deal
strictly with those who violate the societal norms. The
standard of proof to be expected by the Court in such cases
must take into account the fact that such crimes are generally
committed on the sly and very rarely direct evidence of a
person other than the prosecutrix is available. Courts must
also realise that ordinarily a woman, more so a young girl,
will not stake her reputation by levelling a false charge
concerning her chastity."
In the case of State of Punjab vs Gurmit Singh : (1996 (2)
SCC 384 , the Supreme Court set aside the acquittal of the accused
persons by the learned Special Court and conceited them holding that
the sole evidence of the prosecutrix was enough and she was not an
accomplice , by holding as follows:
" We must express our strong disapproval of the approach of
the trial court and its casting a stigma on the character of the
prosecutrix. The observations lack sobriety expected of a Judge.
Such like stigmas have the potential of not only discouraging an
even otherwise reductant victim of sexual assault to bring forth
complaint for trial of criminals, thereby making the society to
suffer by letting the criminal escape even a trial. The courts are
expected to use self-restraint while recording such findings
which have larger repercussions so far as the future of the
victim of the sex crime is concerned and even wider
implications on the society as a whole-where the victim of crime
is discouraged - the criminal encouraged and in turn crime gets
rewarded! Even in cases, unlike the present case, where there is
some acceptable material on the record to show that the victim
was habituated to sexual intercourse, no such inference like the
victim being a girl of "loose moral character" is permissible to
be drawn from that circumstance alone. Even if the prosecutrix,
in a given case, has been promiscuous in her sexual behavior
earlier, she has a right to refuse to submit herself to sexual
intercourse to anyone and everyone because she is not a
vulnerable object or prey for being sexually assaulted by
anyone had everyone. No stigma, like the one as cast in the
present case should be cast against such a witness by the
Courts, for after all it is the accused and not the victim of sex
crime who is on trial in the Court.
As a result of the aforesaid discussion, we find that the
prosecutrix has made a truthful statement and the prosecution
has established the case against the respondents beyond every
reasonable doubt. The trial court fell in error in acquitting them
of the charges levelled against them. The appreciation of
evidence by the trial court is not only unreasonable but
perverse. The conclusions arrived at by the trial court are
untenable and in the established facts and circumstances of the
case, the view expressed by it is not a possible view. We,
accordingly, set aside the judgment of the trial court and convict
all the three respondents for offences under Sections
363/366/368 and 376 IPC"
In the case of Moti Lal v. State of Madhya Pradesh : 2008
(11) SCC 20, the Supreme Court has held as follows:-
"......The Court, therefore, shoulders a great responsibility
while trying an accused on charges of rape. They must deal
with such cases with utmost sensitivity. The Courts should
examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies
in the statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. If for some reason the Court finds it
difficult to place implicit reliance on her testimony, it may look
for evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial Court must be alive
to its responsibility and be sensitive while dealing with cases
involving sexual molestations. This position was highlighted in
State of Punjab v. Gurmeet Singh (1996 (2) SCC 384)."
EVIDENCE OF THE WITNESSES
14. Although not required to do so in an application under
Section 401 of the Cr.P.C where the conviction by the trial court has
been confirmed by the Appellate Court by sound reasoning after
analyzing the evidence on record (which is the case here) , but in view
of the contention of the learned counsel for the petitioner that medical
evidence does not support the allegation of rape and other independent
witnesses do not support the allegation of rape, I have gone through the
evidence of the witnesses especially P.W. 1(brother of the victim),
P.W.2 (the victim), P.W.3 and P.W.4(seizure witnesses), P.W 6
(mother on the victim ), P.W.7 (scribe of the FIR), Medical Officers
(P.W.9, P.W.12 and P.W.13) and the Investigating Officers (P.W.s 14
to 16) and perused the documents on record although. I have also
carefully perused the judgments of the learned trial court and appellate
court.
P.W.1, the brother of the victim P.W.2, has stated that during
the occurrence he was not present in his house and had gone to village-
Haripur. On 27.09.1999 he returned from village-Haripur and when he
reached Kujanga, he learnt from others that his sister P.W.2 has been
raped and had been sent to the hospital. He proceeded to the hospital
and found P.W.2 lying in a bed in the female ward. On being asked by
him, P.W.2 told him that on 26.9.1999 at about 7.00 P.M. the accused
entered inside her house, gagged her mouth by means of a towel and
raped her for which there was bleeding from her private part. P.W.2
also showed her nighty and Saya (M.Os. I & II) which were stained
with blood. She said that she was brought to hospital by her mother
(P.W.6) and others and she was waiting for him (P.W.1) to lodge the
report. Thereafter, being instructed by P.W.6, one Manoranjan Dalai
(P.W.7) scribed the F.I.R. In cross-examination P.W. 1 has stated that
he reached the hospital at about 10.00 or 11.00 AM. and stayed in the
hospital for about ten minutes and then came to the police station at
about 12.00 noon to lodge the F.I.R. Thereafter, they went to Kujanga
hospital and were subsequently referred to Jagatsinghpur. They
narrated the incident before the Doctor at Jagatsinghpur. According to
P.W. 1, in the same night at about 9.00 PM. police visited the spot and
saw the blood stained earth.
P.W.2, who is the victim has stated that on 26.9.99 at 7.00
P.M. while she was arranging utensils in her house and her mother had
gone to the house of Jogendranath Dalai (P.W.8) to perform the
evening Puja (sandhya), at that time the accused entered inside her
house. Seeing the accused she was taken by surprise for which she
shouted „BOU‟. The accused thereafter gagged her mouth by means of
a towel and threw her, as a result she fell down facing upwards. The
accused then removed her saya, despite her protest for which the Saya
was torn. The accused then removed her „Chadi‟ and forcibly raped her
repeatedly. P.W.2 has said that she was protesting against the action of
the accused, but he did not leave her and raped her on the floor. During
such rape she felt severe pain in her private part and due to the
cohabitation there was profuse bleeding from her private part. Her saya
and nighty were stained with blood. After cohabitation when the
accused was leaving the place, she tried to snatch away his towel but
the accused dealt two kicks on her and extended threats by saying
"bedhei toki jadi mo na kahu tate jeebanare maridebi". She was lying
on the ground, feeling weak. Thereafter, her mother (P.W.6) reached
and lighted the lamp and when she enquired, she narrated the incident
to her. P.W.6 thereafter called Manoranjan Palei (P.W.5), Dillip Kumar
Dalei and Khokan Dalai and took her to Kujanga Hospital in a cycle
where the Doctor gave an injection to her and advised to take rest. She
then slept in the night and in the following morning another Doctor
came, checked her and directed for her removal to Jagatsinghpur as her
condition was serious. While she was in Kujanga Hospital, police came
and examined her. Thereafter, she went to Jagatsinghpur but the Doctor
directed them to come on the next day. Therefore, they came back to
Kujanga police station and stayed there that night. On the next day they
again went to Jagatsinghpur, where she was examined. In her cross-
examination P.W.2 has said that her house consists of one room only
and that she was arranging utensils at a gap of 6 to 7 cubits from the
door of the room. She did not throw any utensils aiming at the accused
but there was tussle between herself and the accused. According to
P.W. 2 she was lying on the earthen floor and that where ever she had
sat, the place was stained with blood. She did not sustain any other
injury on her person. She has stated that she is not accustomed to
sexual intercourse and that at the time she fell down the utensils
scattered and the lamp was put out, and that the entire occurrence
continued for 10 to 15 minutes. She has also stated that P.W. 6 reached
the house just after the departure of the accused. All of them walked to
Kujanga hospital but she was taken in the cycle of one Dillip Kumar
Dalei. They reached Kujanga Hospital at 10.00 P.M. and narrated the
entire incident to the Doctor. The places where she was sitting and
sleeping on the bed at the Hospital were stained with blood and by then
she was wearing M.O.s I and II i.e. the nighty and saya. On 27.9.1999
at 12.00 noon, the police came to the hospital and interrogated her for
about half an hour, noted down her statement and took her signature in
the document prepared by him. The pain in her private part was
reduced after 2 to 3 days after taking the medicines and the Doctor at
Kujanga saw her private part. She could not produce her "Chadi"
before the Police, as she could not trace the same after her arrival in her
house. She denied the suggestions given by the defence that she was in
love with the accused and had given him a letter marked 'x' to him and
that she had an intention to marry the accused and her mother gave
such proposal and that the accused denied the same.
P.Ws.3 and 4 have stated about the seizure of nighty and saya
(M.Os.I & II) under the seizure list Ext.1 and according to them at the
time of the seizure P.W.2 was wearing M.Os. I & II which were stained
with blood. In cross examination P.W.3 & 4 have stated that P.W.2 was
then at the hospital and she was provided with a bed.
P.W.6, the mother of the victim, who is the informant of this
case, has deposed that on 26.9.1999 at 7.00 P.M. she had been to the
house of P.W.8 to perform the „Sandhya Puja‟ and after about 15
minutes when she returned, found the accused coming out of her house
wearing a printed Lungi, pink colour Ganji and was holding a towel.
When she went inside her house, she found P.W.2 lying naked and
blood was coming out of her vagina and that her wearing nighty and
saya (M.Os.1 & II) were stained with blood. She supplied water to
P.W.2 and being asked P.W. 2 told her that the accused entered inside
the house and forcibly raped her after gagging her mouth by means of a
towel. Thereafter, she came out of her house and saw Dillip Dalai,
Manoranjan Palai (P.W.5) and Khokan Dalai on the road and requested
them to remove P.W.2 to the Hospital. Accordingly they all took P.W.2
to Kujanga Hospital in a cycle where the Doctor saw P.W.2 and she
stayed there in that night. On the next day at 12.00 noon police arrived
in the Hospital and she (P.W.6) requested P.W.7 to scribe the F.I.R.
Thereafter, she with her son P.W.1 proceeded to the Police station and
lodged the F.I.R- Ext.2. On the same day at 2.00 P.M. they went to
Jagatsinghpur Hospital, but due to late arrival P.W.2 was not examined
by the Doctor, so they came back to Kujanga and stayed in that night at
Kujanga P.S. On the next day i.e. on 28th at about 10.00 AM they
again went to Jagatsinghpur Hospital, where P.W.2 was examined. In
cross-examination P.W.6 has said that there is only one room in her
house and that no outsider was there near her house at 7.30 P.M. when
she was returning after performing the "Sandhya Puja". She did not
raise any hullah seeing the accused coming out of her house. She has
stated that the villagers reached her house after about l or 2 hours of the
occurrence and she narrated the occurrence before Dillip, Manoj
(P.W.5) and Khokan. There was no electric line in her house and that
the victim was raped on the floor and not on the cot. There were nail
mark injuries at 4 to 5 places on the body of P.W.2 i.e. on both the
cheeks and chest. The ground, where P.W.2 was lying was also stained
with blood at 7 to 8 places and there was also blood stains in the court-
yard. The bleeding stopped after taking medicines and after return from
Jagatsinghpur. In course of her further cross examination P.W.6 said
that in the morning of 27th the Doctor gave information to the police
and that police came at 12.00 noon when M.Os.I and II were seized.
Police also noted down something at the hospital and that she with
P.W.2 had signed in that paper. On 28th, P.W.2 was examined at
Jagatsinghpur Hospital for about 1 or half an hour but she has
expressed her inability to say as to whether P.W.2 took any medicine.
P.W.7 who is the scribe of the F.I.R. (Ext.2), has admitted to
have scribed the same on the instruction of P.W.6 and that he read over
and explained the contents thereof to P.W.6 who thereafter put her
signature. In cross-examination, P.W.7 says that the F.I.R. was scribed
at 12.00 noon in the hospital at Kujanga and that he prepared a draft at
first and that draft was destroyed after preparing the final F.I.R. (Ext.2).
He admits to have not given any certificate in Ext.2 to the effect that he
scribed the same as per the instruction of P.W.6.
P.W.9 is the doctor, who examined P.W.2 at Jagatsinghpur
District Headquarter Hospital has stated that there was no sign of recent
sexual intercourse nor there was any injury on the vagina or vulva but
the hymen was ruptured. There was no recent injury on the hymen nor
any injury on the breasts, cheek or thigh. There was foul-smelling
vaginal discharge and there was vaginal swab(cotton) inside the vagina
which was preserved and sent to the police for chemical examination.
The ossification test revealed age of the victim to be 24 years. In cross
examination P.W.9 has said that there was no sexual intercourse within
a period of 7 to 10 days and that in case of forcible sexual intercourse
the injury will appear on the person of the victim and the accused. He
further said that the possibility of rupture of hymen 5 to 7 back cannot
be ruled out in this case. Again according to him, the vaginal pack was
given in the vagina of P.W.2 to check the uterus bleeding and that such
bleeding occurs during the period of menstruation but on the day of his
examination there was no bleeding from the uterus.The report
submitted by the Doctor has been marked as Ext.3. He has also stated
that the possibility of menstruation prior to 4 to 5 days of his
examination cannot be ruled out and that on 27 th "siochrome" injection
was given to the victim to check the bleeding including menstruation.
P.W.12 was the Doctor of Kujanga P.H.C..He stated that he
examined the accused a male of 30 years on 16.7.2000 and submitted
his report vide Ext. 5. He has stated that the accused was capable of
doing sexual intercourse and was fit to overpower a girl of 20 years of
age but he did co-operate to give blood sample and seminal fluid.
P.W.13, was another Doctor of Kujanga P.H.C. He has
deposed that on 27.9.1999 in course of his visit he found P.W.2 lying
on the bed of the P.H.C. and that being asked P.W.6 replied that in the
previous night at about 11.30 P.M, P. W.2 was brought to hospital with
history of trauma but P.W.2 replied nothing and on the other hand,
P.W.6 replied that in the previous night P.W.2 was raped for which
they called the Pharmacist who gave an injection. Again according to
P.W.13 he called the pharmacist who told that nothing about the rape
was disclosed before him. According to P.W.13 on arrival of the
brother of the victim, he informed the matter to the police .On police
requisition, he examined the victim and referred her to Headquarter
Hospital, Jagatsinghpur for expert opinion and treatment. He stated that
he has not given any treatment to the victim and he has proved his
referral letter vide Ext.6. In cross-examination P.W.13 has said that on
27.9.99 at 10.00 AM. he sent a written report to the police. P.W.14 the
then O.I.C.of Kujanga P.S. has submitted the Charge Sheet. He stated
that he collected the vaginal swab under the seizure list Ext.4/2 and
sent the same to S.F.S.L, Rasulgarh for chemical examination. He had
examined the scribe of the F.I.R.
P.W.14, P.W.15 and P.W.16 deposed about the investigation
conducted by them.
P.W.15, the I.O and the then O.I.C. of Kujanga P.S. has
deposed about the investigation done by him.
P.W. 16 was the O.I.C. of Kujanga P.S. He collected the
medical report from P.W 9 the Doctor in respect of the victim and
according to him, the doctor did not submit the vaginal swab. He has
also said that he arrested the accused and sent him for medical
examination.
ANALYSIS
15. A woman of tradition bound society will not make false
allegations of rape involving herself as her reputation in society will
also be affected. It is the settled principle of law that a victim of rape is
not an accomplice and conviction can be based on her sole evidence, if
it is found to be cogent and reliable.
16. It is also no longer res integra, that in all cases where the medical
evidence does not support the oral evidence of the victim, the accused
should be acquitted. In such event, the evidence of the prosecutrix has
to be examined carefully in order to be satisfied if it can form the basis
of conviction.
17. The evidence of P.W. 2 the victim reveals that taking advantage
of the absence of her family members in the house, the petitioner raped
the victim inside the house. No reason has been shown as to why the
victim would make false allegations against him. P.W.2, the victim has
vividly described the manner in which she was raped, how she was
taken to hospital and after return of her brother, about registration of
the FIR and she was not examined by the doctor as it was later and they
had to stay the night in the police station. Merely because it was stated
by P.W.6 in the FIR that she was raped on the cot, do not fatal to the
prosecution as FIR was not lodged by the victim.
18. The evidence of P.W.6 inspires confidence as nothing material
has been elicited during her cross examination so as to disbelieve her.
Merely because the doctor P.W.9, did not find any signs of recent
sexual intercourse cannot be a ground to reject her evidence when he
has stated that there was rupture of hymen.
19. In this case, the evidence of P.W 2 is corroborated by P.W. 6, her
mother, who while returning to her house saw the accused leaving the
house and found the victim lying on the floor bleeding. With the help
of some neighbours she took P.W 2 to the hospital.
20. Where investigation has been defective, if on careful scrutiny, it
is found that the evidence on record establishes the guilt of the accused,
the court should not acquit the accused solely on account of such
defect as that would tantamount to playing into the hands of the
Investigating Officer, in case the investigation is designedly defective.
In the present case, there are a few defects in the prosecution but they
are not so serious as to cast doubt on the prosecution case. The I.O. has
neither collected soil and sample soil from the house of the victim nor
collected the bedhead ticket of the victim from the hospital where she
was treated.
21. The sole evidence of P.W. 2 would have been enough to
convict the petitioner. But her evidence is corroborated by the evidence
of her mother - P.W. 6, her brother- P.W.1 as well as P.W.14 the OIC
of Kujanga Police Station. The seizure of her blood stained wearing
apparel have also been proved through evidence of P.W.s 3 and 4. So
merely because P.W 9 the doctor stated that he could not find any signs
of recent sexual intercourse, cannot be a ground to acquit the petitioner
in view of other features of the case that her hymen was torn and she
was suffering from excessive bleeding .
22. Failure of the victim to inform the pharmacist or the doctor
that she had been raped, will also not be reason to disbelieve the
prosecution case in view of her condition and as P.W.6 her mother had
disclosed this to the doctor.
23. The delay in lodging FIR has also been explained as P.W 2 the
victim and P.W.6 her mother have stated that they were waiting for
P.W.1., brother of the victim. That apart, delay in lodging FIR in a rape
case is natural in view of the nature of the offence and the stress
suffered by a victim.
24. Merely because P.W.7 admitted that he prepared a draft first
and the draft FIR was destroyed after preparing the FIR is corroborated
by the evidence of P.W.6-the informant.
25. In the case of Rabi Munda (supra) the victim was aged below
16 years and the medical evidence indicated that there was no sign of
sexual intercourse.
26. In the case of Gopal Satpathy (supra), the High Court
acquitted the accused after discussing the infirmities in the prosecution
case and as the evidence of the victim, a married lady did not inspire
confidence.
27. In the case of Jagannth Ojha @Jaga (supra), neither the
statement of the victim who was mentally unsound, could be recorded
under Section - 161 or 164 Cr.P.C nor did she depose in Court. So this
Court acquitted the accused -appellants holding that it would be unsafe
to base the conviction on the DNA report as the scientific officer had
not been examined nor was there any other evidence to prove the safe
custody of the wearing apparels which had been sent for testing.
CONCLUSION
28. In view of the above discussion and after considering the
submission of the learned counsel, I am satisfied that the prosecution
has been able to prove its case against the petitioner for commission of
offences under Section 376 and 448 of the IPC beyond reasonable
doubt.
29. I therefore do not find any reason or justification to interfere
with the concurrent findings of the learned trial court or appellate court
so as to set aside the conviction of the petitioner for commission of the
offences under Section 376 and Section 448 of the IPC.
30. The conviction of the petitioner for commission of offence
under Section - 376 / 448 IPC is confirmed.
31. As far as the sentence is concerned, more than twenty five
years have elapsed since the date of occurrence. I am therefore inclined
to reduce the substantive sentence imposed by the learned trial Court
for the offence under Section 376 of the IPC from seven years to five
years, and enhance the amount of fine from Rs 5,000/- to Rs 10,000/- in
default to undergo S.I for further two years. The entire fine amount if
realized shall be paid to the victim P.W 2 as compensation. The
sentence to undergo S.I. for six months for the offence under Section
448 of the IPC is confirmed along with the direction that the sentences
are to run concurrently.
32. The Criminal Revision is dismissed with the above
modification in sentence.
33. The petitioner is on bail. He should surrender within a period
of eight weeks to serve out the remainder of his sentence.
34. The trial court records be returned to the learned trial court
alongwith a copy of this judgment.
...........................
Savitri Ratho
Judge
Orissa High Court, Cuttack.
The 30th May, 2025.
Subhalaxmi, Junior Stenographer.
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 12-Jun-2025 18:58:02
